Courts Overruling Tribunals

Courts often quash an administrative decision after a judicial review hearing. But then what happens?

The successful applicant wants the court to substitute a final decision in his or her favor. The respondent wants a fresh hearing before the tribunal. Sometimes governing legislation even states that the court can or should send the matter back to the tribunal if it quashes or reverses the tribunal's original decision.

If the decision was upset because of some hitch in procedure or evidence, then a new hearing is obviously the right remedy. It is unlikely that either party or the tribunal will make the same procedural blunder the second time around. And a decision after a fresh hearing will almost certainly be free of the effects of the original error, especially if a different panel of the tribunal hears the second hearing.

But what if the flaw in the first hearing was a lack of jurisdiction not curable by a second hearing, even by a fresh panel? What if the facts are undisputed, and the law makes any action or relief on those facts unreasonable? Is there any point to the court's sending the matter back to a tribunal with a direction telling exactly the tribunal must do? Should the court just impose that on the parties itself? In a criminal appeal, if the appeal court finds that no jury properly instructed and acting judicially could reasonably convict, then the appeal court must enter a final acquittal, and cannot order a new trial. Could there be an analogy there?

Such an issue arose before the Saskatchewan Court of Appeal in a case coming out of a union grievance arbitration: Retail Whsle. Dept. Store Union v. Yorkton Coop. Assn. 2017 SKCA 107, CACV 2971 (Dec 11) (¶ʼs 47-50). Several incidents of an employee dishonestly claiming wages by faking his time records and then lying and covering up during the subsequent investigation, were not disputed. And the arbitrator found that there was no evidence that trust in that worker could be restored. The courts held that whether or not there was any other misconduct, those facts were enough to allow the employer to fire the worker, which the employer had done. The arbitrator ordered the worker reinstated, but both courts held that to be unreasonable, and so must be upset.

Nevertheless, the appellant union wanted the matter sent back to the arbitration tribunal to reconsider. Usually that is the result of quashing a decision, said the appeal court. However, in narrow circumstances, the court can substitute its decision for that of a tribunal. One example is when any new hearing would be pointless (e.g. lacking jurisdiction). Another is where only one solution is possible, e.g. any other would be unreasonable. The Saskatchewan Court of Appeal denied a rehearing, relying on a 2014 decision to the same effect by the Alberta Court of Appeal, Telus Communications v. Telecomm. Workers U. 2014 ABCA 199, 70 Admin LR(5th) 100.

– Hon. J.E. Côté

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.